Advertising: Video Containing Patient’s Medical Information Is Not Protected Speech

October 1, 2012 | Healthcare Risk, Quality, & Safety Guidance

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The Fourth Appellate District Court of California held that the state's anti-SLAPP (strategic lawsuit against public participation) statute, which prevents plaintiffs from filing frivolous lawsuits that hinder free speech, does not protect a video production company that used private medical information without consent in advertising material. The plaintiff had received treatment for temporomandibular joint (TMJ) disorder from a dentist but had voiced his unhappiness with the treatment results and requested that the dentist remove the plaintiff's image and treatment history from the dentist's website, as well as pay damages for economic loss, pain, and suffering.

The dentist and plaintiff settled, but the dentist's website continued to contain the plaintiff's treatment history, including photographs of his face, mouth, and neck. The plaintiff subsequently sued the video production company for intentional and negligent infliction of emotional distress, invasion of privacy, and statutory violations because the company broadcast an interview with the dentist that contained the plaintiff's image and treatment history, portrayed the plaintiff as a satisfied patient, and used the plaintiff's name for advertising purposes and to the company's financial benefit. The defendant video production company argued that the video was protected speech under the anti-SLAPP statute because it was available in a public forum (e.g., Internet, television) and concerned an issue of public interest (i.e., TMJ). The trial court found that the interview was an advertisement for the dentist's practice and...

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